An issue that often arises in the context of disciplinary meetings is whether an employee can record the meeting. This issue often causes great concern for education providers.
Can you refuse?
It is entirely acceptable for an employer to refuse to allow an employee to make an audio recording of the meeting. Ideally, an employer should make it clear in its disciplinary and grievance procedures that employees should not make recordings of any part of a hearing without the consent of those present.
The issue often only rears its head at the time of the meeting. To avoid confusion down the line, an employer may consider it wise at the start of the meeting to state that recording is not permitted and ask the employee and his/her representative to turn off all mobile phones and any recording equipment. There should, however, be some record of the meeting in the form of handwritten notes, which both parties can sign confirming that these reflect a true and accurate account of the meeting.
What if you don’t know?
In the age of smartphones, a more worrying scenario for an employer, is where the employee covertly records the meeting. This may give rise to concerns under the data protection legislation, particularly where sensitive information about other people not present at the meeting, was discussed and subsequently disclosed.
Covert recording of a conversation, where all parties present are party to the conversation, is not prohibited. However, an employer may consider it a breach of mutual trust and confidence and wish to deal with covert recording as a disciplinary matter under its disciplinary process.
It should be noted that it is illegal to record telephone communications without the consent of at least one of the parties. Data Protection and confidentiality obligations should also be borne in mind.
It is worth looking to UK case law for guidance, which is of persuasive effect in this jurisdiction. It has been established in the UK that covert recordings of disciplinary meetings are generally admissible as evidence before a Rights Commissioner, Tribunal or Court provided that the information is relevant to the subject matter of the claim.
UK employers were given some comfort when the UK tribunal held that secret recordings of ‘private’ deliberations of the panel conducting the disciplinary hearing couldn’t be used as evidence. However, in the case of Punjab National Bank v Gosain, the EAT upheld the tribunal’s decision that ‘private’ discussions between managers at a break in the grievance and disciplinary hearings were admissible as evidence. The EAT held that the tribunal had correctly balanced the general rule that relevant evidence is admissible with the need to preserve the confidentiality of private deliberations during internal proceedings.
How an Irish court or tribunal will interpret this, remains to be seen.
We would recommend that an employer deals with the issue of recording disciplinary and grievance meetings in its policies and procedures, so both parties are aware of the employer’s stance on recording. In addition, the protocol on recording should be set out at the beginning of any meeting.
However, the UK case law provides little comfort to an employer as it looks like covert recordings will generally be admissible where the information recorded is relevant to
the claim, even if it is a private discussion.